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Discrimination Claims: What to Do When The EEOC Comes Knocking

By: Ariana B. Bianchi

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The Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC), created by Congress in 1964, is an independent federal agency working to prevent discrimination in the workplace. The Commission enforces several statutes, including:

Title VII of the Civil Rights Act (Title VII) - prohibits employment discrimination based on race, color, religion, sex and national origin; applies to employers with 15 or more employees

Equal Pay Act of 1963 (EPA) - prohibits sex-based wage discrimination between men and women in the same establishment who are performing under similar working conditions; applies to employers with 1 or more employees

Civil Rights Act of 1991 (CRA) - amends several sections of Title VII, ADEA, and ADA

Age Discrimination in Employment Act of 1967 (ADEA) - prohibits employment discrimination against persons 40 years of age or older; applies to employers with 20 or more employees

Rehabilitation Act of 1973

  • Section 501 - prohibits employment discrimination against individuals with disabilities in the federal sector
  • Section 505 - contains provisions governing remedies and attorney's fees under Section 501


Titles I and V of the Americans with Disabilities Act of 1990 (ADA) - prohibits employment discrimination against qualified individuals with disabilities; applies to employers with 15 or more employees

WHEN A CHARGE OF DISCRIMINATION IS FILED

The EEOC has the authority to receive and investigate charges of discrimination filed against employers who have the statutory minimum number of employees. Any individual can file a charge of discrimination with the EEOC if he or she believes that employment rights have been violated; moreover, an individual, agency, or organization may also bring a charge if they want to protect the identity of an aggrieved individual. The charge is filed in person at an EEOC office or by mail.

Once a charge is filed, the EEOC will determine if there is a basis for further investigation. The EEOC may dismiss the charge or proceed with an investigation as follows:

1. Notice to the Employer
Once a discrimination charge is filed, an employer will be notified and given the name and contact information of the investigator assigned to the case. A charge of discrimination is an allegation, not a conviction, so it is the EEOC investigator's job to determine whether there is reasonable cause to believe that discrimination occurred.

2. Mediation and Settlement Options, if Applicable
The investigator will inform the employer, and he or she is always free to ask, if mediation or settlement options are available based on the charge.

  • Mediation - The EEOC has a voluntary, free, and confidential mediation program wherein no investigation occurs. Most employers who participate in the program are satisfied with the process, which lasts an average of 84 days. If mediation is successful, the charge is closed with the EEOC and the settlement agreement is enforceable. If mediation is unsuccessful, the charge is referred for investigation.
  • Settlement - The EEOC will settle charges at any time during the investigation. With a settlement, there is no admission of liability and the charge is dismissed once a voluntary agreement is reached. The settlement agreement is enforceable.


3. Information Gathered from the Employer and Charging Party
The investigator will collect information from the employer and the charging party, including but not limited to:

  • A Statement of Position - enables the employer to explain the events and circumstances as he or she understands them to be true.
  • A Request for Information (RFI) - involves submitting copies of personnel policies and files, including files appertaining to the Charging Party and other relevant individuals.
  • Interviews with Witnesses - the investigator will need to be able to interview witnesses relevant to the charge. The employer's presence is allowed for interviews with managers; however, non-management employees may be interviewed without the employer's presence.
  • On-Site Visits - the investigator may need to visit the employer's premises to expedite the investigation (the average length of an investigation is 182 days). In some cases, an on-site visit may replace the RFI if the requested policies and files are made available to the investigator during the visit.


EXPECTATIONS DURING AN INVESTIGATION

An employer is expected to cooperate with the EEOC investigator and present any facts that will help determine the merit of a charge. If the employer has information that shows the allegations are false or do not violate a law, then the employer needs to present that information to the investigator immediately. Additionally, the employer needs to help the investigator understand the most efficient way to collect information and further the investigation. It does not matter if the employer believes the investigation is unnecessary or frivolous.

The employer may discuss any concerns he or she has regarding the scope of the investigation at any time. In some instances, the scope of the investigation may be modified; however, any relevant information can be ultimately subpoenaed by the EEOC.

In the event that timely cooperation with the investigator is not feasible due to extenuating circumstances, it is the responsibility of the employer to notify the investigator and set up an alternative time line. Also, documents appertaining to the charge must be kept for a certain period of time by law. The employer can discuss relevant documents and time lines with the investigator.

The investigator is expected to conduct a proper and timely investigation. The investigator should be available to answer questions the employer has about the charge and investigation, including the rights and responsibilities of both the employer and Charging Party.

The investigator will also allow the employer to respond to the allegations and will ultimately inform the employer of the investigation findings.

DETERMINING THE MERITS OF THE CHARGE

When the investigation is complete, the EEOC will establish whether or not there is reasonable cause to believe that discrimination occurred.

  • No Reasonable Cause - When there is no reasonable cause, the EEOC will issue a Dismissal and Notice of Rights letter to the charging party. This notifies the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer also receives a copy of this letter for recordkeeping.
  • Reasonable Cause - When there is reasonable cause, the EEOC will issue a Letter of Determination to both parties, inviting them to cooperate with the EEOC in resolving the charge through conciliation.


"REASONABLE CAUSE" AND CONCILIATION

When the EEOC establishes that there is reasonable cause to believe that discrimination occurred and notifies both the employer and charging party of such, the EEOC is then required by statute to resolve the matter through "informal methods of conference, conciliation, and persuasion" (42 U.S.C. 2000e-5). This involves inviting the parties to participate in conciliation for the development of a remedy.

A voluntary process, conciliation involves negotiating and making counter-offers to arrive at an agreement of remedy. It provides an informal method for resolving the discrimination charge, and it removes the costs and other burdens associated with litigation.

Conciliation provides a final opportunity for an employer to resolve a discrimination charge. If conciliation fails, the EEOC will consider litigation or issue a Notice of Right to Sue to the charging party, notifying the charging party of the right to file a lawsuit in federal court within 90 days.









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